The AALS Section on Property is pleased to announce this Call for Presenters for its program during the 2015 AALS Annual Meeting in Washington, D.C. The Section’s broadly-themed program, entitled “The Place and Scope of Economic Analysis within Competing Conceptions of Property,” will include a diversity of opinions on the proper place, scope, role, and utility of economic analysis in understanding, evaluating, and comparing varying conceptions of property. Confirmed speakers include Eric Claeys (George Mason University School of Law), Henry Smith (Harvard Law School), Laura Underkuffler (Cornell Law School), and Lua Yuille (University of Kansas School of Law). Through this Call for Presenters, the Section seeks one additional speaker who will advance this session’s broad theme and complement the scholarly perspectives of the confirmed speakers.

Full-time faculty members of AALS member law schools are invited to submit a one-page abstract of their presentations to Timothy Mulvaney (Texas A&M University School of Law), Chair of the AALS Section on Property, at tmulvaney@law.tamu.edu by June 20, 2014. A review panel consisting of five property scholars will select a submission for inclusion in the program and notify the selected presenter by mid-July. The selected presenter will be responsible for paying his/her annual meeting registration fee and travel expenses.

There is no publication commitment associated with this panel. However, the Texas A&M University Law Review graciously has offered to publish essays or articles authored by any or all of the presenters on the topic of the panel.

Today, the Department of the Interior and the Department of Commerce released two proposed rules and one proposed policy, all pertaining to the Endangered Species Act’s treatment of critical habitat. One rule would make some subtle changes to the standards used in designating critical habitat, and the other would update the regulatory definition of “adverse modification” of critical habitat. The proposed policy would provide guidance on the standards used to exclude areas of habitat from critical habitat designations.

This post provides a quick first take on the rules, with a primary focus on the redefinition of adverse modification.” That redefinition could be a big deal. Section 7 of the ESA prohibits federal agencies from taking actions likely to adversely modify critical habitat, and that might seem, at first blush, like the most stringent provision in a law that is already legendary for its stringency (whether it deserves that fearsome reputation is another question). Implementing the ESA’s critical habitat provisions has also been difficult—years ago, Oliver Houck aptly referred to critical habitat as “an agony of the ESA”—and these rulemaking processes offer the Fish and Wildlife Service and the National Marine Fisheries Service the opportunity to relieve some of that difficulty.

The Need

Why promulgate these new rules? The short answer is litigation. Until 2004, the services operated under 1986 regulations that defined “adverse modification.” But multiple courts rejected that definition, finding that it illegally excluded actions that would compromise species’ recovery but not their survival. The last of those decisions, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004) sounded the death knell for the old regulations. Both services sent memos to their biologists instructing them to cease relying upon the regulatory definition. The process of replacing the defunct regulations hasn’t exactly proceeded quickly, but those court decisions made it all but inevitable.

In addition to court cases, the adverse modification standard has been beset by a few other problems. One is its uncertain relationship to ESA section 7’s prohibition on federal agency actions likely to “jeopardize” the continued existence of listed species. In the 1990s, the Department of the Interior often asserted (partly in reliance on the now-defunct regulations), that the two standards were functionally identical, and that the adverse modification prohibition had no independent function. Even after the Gifford Pinchot decision, practice continued to reflect those earlier claims. In a study of over 4,000 biological opinions issues between 2005 and 2009, I found none that reached an adverse modification finding without also finding jeopardy (the prohibition wasn’t completely inconsequential; biologists told me that it affected their negotiations over project changes). As a basic matter of statutory interpretation, that seems problematic. Lawyers generally presume that Congress doesn’t put redundant words in statutes, yet the services’ implementing approaches turned the adverse modification prohibition into something close to surplusage.

The third problem involves de minimis harms. The ESA itself contains no de minimis exception to the adverse modification prohibition, but the services have never wanted to apply that prohibition to every federal action that modifies critical habitat for the worse. So they wrote a rather fuzzy de minimis standard into their old regulations and guidance, which applied the adverse modification only to actions that “appreciably diminished” the value of critical habitat. “Appreciably diminish,” in turn, meant “considerably reduce” that habitat’s value. In that same study, I found that in practice, the services often applied these definitions in ways that tolerated fairly substantial alterations of critical habitat, and that the services lacked a coherent and principled basis for distinguishing harms that counted as adverse modification from those that were truly de minimis. That seems rather problematic, and a new rulemaking would afford the services an opportunity to address the de minimis problem in a more rigorous and transparent way.

The Proposed Rule

So does the proposed rule address these issues? The answers, in sequence, are yes, partly, and not really at all.

First, the proposed rule does fix the heart of the services’ Gifford Pinchot problem. It makes very clear that impacts to recovery must be considered in an adverse modification inquiry. Here’s the proposed definition:

“Destruction or adverse modification” means a direct or indirect alteration that appreciably diminishes the conservation value of critical habitat for listed species. Such alterations may include, but are not limited to, effects that preclude or significantly delay the development of the physical or biological features that support the life-history needs of the species for recovery.

Second, the proposed rules clarify the relationship between jeopardy and adverse modification. The claims that the adverse modification standard is redundant are conspicuously absent, and instead the services provide this clear statement (from the designation rule preamble rather than the adverse modification rule):

In addition to serving as a notification tool, the designation of critical habitat also provides a significant regulatory protection—the requirement that Federal agencies consult with the Services under section 7(a)(2) of the Act to ensure that their actions are not likely to destroy or adversely modify critical habitat.

In the 1990s, and even in the 2000s, the services weren’t saying things like that.

The services also provide some clarification about when the adverse modification standard will add something to the protections provided by the jeopardy standard. Specifically, they anticipate the adverse modification provision becoming significant when habitat destruction is unlikely to affect a species’ present-day population dynamics—perhaps because the habitat is unoccupied—but is likely to affect a species’ recovery prospects. The most concise explanation comes from the preamble to the designation rule:

This benefit should be especially valuable when, for example, species presence or habitats are ephemeral in nature, species presence is difficult to establish through surveys (e.g., when a species such as a plant’s “presence” may be limited to a seed bank), or protection of unoccupied habitat is essential for the conservation of the species.

The preamble to the adverse modification rule fleshes out that concept in more depth.

While that helps clarify the relationship between jeopardy and adverse modification, other important questions remain unresolved. One particularly important question is whether adverse modification should have a lighter threshold than jeopardy even where the habitat in question is occupied. I’ve argued elsewhere that it should, and some others—both within and outside the services—agree. But that issue isn’t really addressed here.

That reflects a broader problem. On the de minimis question, the services have provided a little bit of clarification, but I see only a hint at the principles that might define the difference between regulated adverse modifications and non-regulated de minimis changes. The services have excised the phrase “considerably reduce” from their definition of adverse modification, and have tried to provide more clarification of what “appreciably diminish” means. That's a step forward, but only a step, and what comes next isn't clear. Rather than try to paraphrase a discussion that I’m not sure I understand, I’ll just paste the key passage below:

To determine the appropriate meaning of the term “appreciably,” we ultimately found it helpful to look at the definition of “appreciate,” which means to “recognize the quality, significance, or magnitude” or “grasp the nature, worth, quality or significance.” This usage makes more sense to us in the actual application of the phrase “appreciably diminish.” The relevant question, then, becomes whether we can recognize the quality, significance, or magnitude of the diminishment. In other words, is there a diminishment to the value of the critical habitat that has some relevance because we can recognize or grasp the quality, significance, magnitude, or worth of the diminishment in a way that affects the conservation value of the critical habitat.

It is important to understand that the determination of “appreciably diminish” will be based upon the effect to the conservation value of the designated critical habitat. That is, the question is whether the “effects of the action” will appreciably diminish the conservation value of the critical habitat as a whole, not just in the area where the action takes place. For example, an action may have an adverse effect to a portion of critical habitat. The question would be, then, whether the adverse effect in that one part of the critical habitat will diminish the conservation value of the critical habitat overall in such a manner that we can appreciate the difference it will have to the recovery of the listed species. Specifically, some factors to be considered will be: will recovery be delayed, will recovery be more difficult, and will recovery be less likely. At the appropriate time after rulemaking, the Services plan to update guidance or handbook material to reflect any identified changes to the “appreciably diminish” definition in the March 1998 Consultation Handbook. These considerations should be applied cautiously so the Services do not apply a standard that is either too sensitive in light of the particular circumstances, or not sensitive enough.

Translated, I think that means something like, “observable diminishment in the value of critical habitat will count as adverse modification, unless that standard is too sensitive, in which case… well, we’ll get back to you.”

To be fair, I think that the services face a really difficult problem. Finding a de minimis threshold that (a) fits with the statutory language; (b) will not become administratively overwhelming; and (c) will fulfill the statutory goals of protecting species is going to be very challenging. I think the services’ best options for finding such a standard, and making it work, would have to be linked to regulatory efforts under other parts of the ESA. A recovery plan, for example, would be a useful document for thinking through thresholds for adverse modification and jeopardy. That hasn’t been past practice but, to the services’ credit, an “integration” group is already trying to think of ways to draw these kinds of regulatory linkages (I don’t know whether this specific one is on the table). So this rulemaking effort may just represent a step in a process toward articulating a more transparent, functional, and protective adverse modification standard.

In my short time as an academic, I’ve noticed an increasingly common practice: when law professors cite the work of other law professors in their articles, they tend to precede the person’s name with the title “professor.” So, for example, I might write, “as Professor Blake Hudson has pointed out, many states do very little to regulate timber harvests from private land.”

I don’t think this is a good practice. That may sound like a funny thing to say; after all, the practice is motivated by courtesy and politeness, and those are generally good things. But I think the practice creates a distinction, and implies an unjustified hierarchy, between professors and other researchers.

Consider this scenario. I’m writing a sentence that will cite two experts, who we’ll call John Poe and Jane Doe. John Poe is a professor, and Jane Doe is a public-sector attorney. The sentence might read like this: “Jane Doe has argued X, but Professor John Doe disagrees, explaining that…” For at least some readers, the title will now become relevant to their assessment of the disagreement; the implication is, “well, he’s a professor, and she isn’t, so we probably ought to give greater weight to his view.” (Of course, some people will have exactly the opposite reaction.) But Jane Doe may well have a deeper understanding of the subject, and a lot of great research comes from people who aren't professors. The better practice, I think, is to let the views stand on their merits, not based on the titles of their authors.

That doesn’t mean titles will never be relevant. Sometimes the title does help readers judge the authoritativeness of an opinion. For example, if a judge writes something about problems with the rules of evidence, it’s helpful to know that the article comes from a judge, who presumably has direct experience with the subject she describes. But for the most part, I think we should just do what academics in other fields do: provide names, not titles.

On April 25, the Tenth Circuit issued a decision in San Juan County v. United States, which will hopefully be the court's last word in the fight over access to Salt Creek Canyon in Canyonlands National Park. For years, hikers and archaeology buffs have urged the Park Service to close a rough jeep trail in the canyon to off-road vehicle users who want to drive to Angel Arch, a unique rock formation located nine miles up the canyon (the map below, which shows the trail, comes from the Tenth Circuit's decision, and the image at left comes from wikimedia commons). There are also several archaeological sites, known as cliff dwellings, in caves in the canyon walls. The Park Service initially closed the road to the general public in the late 1960s, but over the years it has allowed limited vehicle use, which has resulted in over a decade of litigation involving the meaning of the National Park Service Organic Act's "no impairment" standard as it relates to vehicle traffic on a primitive route in a National Park.

The recent litigation involving access has centered around Revised Statute 2477, or R.S. 2477, which is a powerful vestige of the General Mining Law of 1866, allowing anyone to construct "highways" for "public use" across unreserved federal public lands. Courts have held that an R.S. 2477 right of way vests upon acceptance, which is basically use, of the highway, but to date, they have liberally construed the term highway to include dirt cow paths, seasonal off road vehicle routes, and the like. Although the Federal Land Policy and Management Act (FLPMA) repealed R.S. 2477 in 1976, it preserved all "valid existing rights." Thus, an R.S. 2477 right of way may be valid today if it vested prior to 1976.

The April 25 decision is notable for several reasons, the first of which is that the Tenth Circuit continues to strengthen the standard for proving "acceptance" of an R.S. 2477 right of way. After this decision, R.S 2477 claimants will have to show that use of the claimed right of way was "continuous" in the sense that the alleged roads were "public thoroughfares," as opposed to seasonal routes used by hunters, ranchers, or jeep enthusiasts. This will be helpful to those defending federal title to these alleged routes because many of them are unpaved, and located in places where spring runoff and winter snow prevent year-round access.

Also, and critically, the court rejected the counties' assertion that state law should determine the entire scope of an R.S. 2477 rights of way, holding that state law has provided "convenient and appropriate principles" for determining the scope and validity of an R.S. 2477 right of way, but it can be dismissed when it "contravenes congressional intent." Lastly, the court rejected the claimants' argument that using Salt Creek road to access grazing allotments could satisfy the "use" element of an R.S. 2477 claim because that use was authorized by federal grazing permits. So, in essence, ranchers holding permits couldn't assert their permitted use of federal lands as an element of what is essentially an adverse possession claim against the federal government, which makes sense.

It is worth noting that, although this decision strengthens the standard, there are over 20 pending R.S. 2477 cases in the federal district of Utah alone, representing claims to over 45,000 acres of "roads," which the attached map demonstrates. Many of these routes cut through National Parks, public domain lands managed by the BLM, and National Forests, so there will no doubt be future litigation as counties in Utah and other western states continue to press their claims in federal court.

You can access the decision here. For more on R.S. 2477 litigation in Utah, click here.

For a spice lover and an environmentalist there could be little more disconcerting than to learn that one's favorite hot sauce is a source of public nuisance caused by the odor of ground peppers. So, when I first learned that the City of Irwindale was threatening to seek closure of the beloved Sriracha sauce factory for causing odor pollution, I was dismayed with the prospect of choosing between my two passions. However, as my colleague Ernesto Hernandez, who has written an op-ed piece (as well as an interview) on the matter after attending a local public hearing clarified, the local environmental protection department seem to have little concern about pollution abatement at the Sriracha factory. While news reports are abuzz with this very hot issue indeed, the outcome is as yet unclear. The City of Irwindale is yet to adopt a resolution on closure of the factory. Relieving though this is, the Sriracha saga nevertheless is an intriguing issue and developments regarding this issue could well provide important lessons in bargaining.